AN INDISSOLUBLE FEDERAL COMMONWEALTH?
THE FOUNDING FATHERS AND THE SECESSION OF AN
AUSTRALIAN STATE
By G. J.
CRAVEN*
[This article deals with the issue of secession as it was perceived at federation. The attitudes
expressed in the basic texts read by the delegates to the National Australian Conventions are discussed.
The author relates and analyses the opinions enunciated by the delegates and their ultimate resolution
of the problem. namely. the insertion of the word 'indissoluble' into the Constitution's Preamble. He
concludes that the delegates failed to resolve or adequately define the issue of secession.J
I Introduction
No student of Australian politics could long remain ignorant of the meaning of
the term 'secession'. The threat that his State would withdraw from the Commonwealth has been played as either the ace or the joker by many a disgruntled State
Premier in the course of his righteous battle with the insidious centralists from
Canberra. Mercifully, Australia has been spared the actual execution ofthis threat,
unlike some of her less fortunate sister federations. But the menace is still ritually
made on what are thought to be the appropriate occasions, whether by way of
whispered warning or bellicose intimidation.
This article does not seek to assess the legality of the secession of an Australian
State; that would be the task of a much longer work. What it attempts is an outline
of the problem of unilateral secession by a State as it presented itself to the men
who framed the Australian Constitution, and an examination of their reaction to
what was, in the light of the American Civil War thirty years before, a very real
question facing the incipient Australian federation. This examination yields a
fascinating insight into the thoughts of the founding fathers I upon an issue so
fundamental that it rarely intrudes into discussions of Australian constitutional
law, namely the very permanence or otherwise of the 'one indissoluble Federal
Commonwealth' which they so diligently planned.
2 The Problem of Secession Facing the Founding Fathers
The founding fathers of the Australian Constitution were in an extraordinary
position when they embarked upon their enormous task of drafting a constitution
for a new nation. As one of their contemporaries remarked of the fruit of their
labours:
• LL.B. (Hons), B.A.; Tutor in Law, Monash University.
I By this expression is meant the delegates of the various Australian colonies to the National
Australasian Convention, which met in Sydney in 1891 and 1897, Adelaide in 1897, and Melbourne in
1898.
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Melbourne University Law Review [Vol. 14, December '83]
The Australian Commonwealth Bill embodies the political ideals of a Constitutional Assembly,
convened in the closing years of the nineteenth century, and favoUIed by conditions which afforded
a unique opportunity for the achievement of grand constitutional results. All history for precedent!
All the world-wide literature of political science for a guide! ... Freedom to legislate for the
territories of a Continent!2
These rhapsodic comments on the immediate ancestor of the Australian Constitution are clearly those of the enthusiastic nineteenth-century theoriSt rather than
the present-day disgruntled citizen. However, they do approach the mark in
describing the position of those who framed the Australian Constitution.
These men were possessed of remarkable opportunities, and subject to correspondingly grave responsibilities. Within the dual constraints of intercolonial
tensions and the necessity to maintain the Imperial hegemony, they faced the task
of devising the constitution which it seemed to them would best selVe the coming
nation, and most particularly, of framing a document which would meet the needs
and solve the problems of that nation, into and beyond the foreseeable futUre.
This was the situation of the founding fathers, one of power and concern; for just
as the possibilities were enormous, so the consequences of failure in a fundamental
respect could prove disastrous. The founding fathers were aware, not only that
they had to safely deliver the infant Commonwealth into the world, but that it was
incumbent upon them to ensure that it sUlVived beyond a potentially stormy
adolescence. Constantly and harrowingly befote their eyes in this respect was the
appalling price paid by the United States of America in the form of its civil war for
the vagueries of those who framed her Constitution. 3
Given the existence of six separate colonies, each with its own Parliament and
governmental policies, each possessed of a substantial degree of separate identity
in the eyes of its citizens, federation rather than unification was quickly recognized
as the only practical means of drawing the people of Australia into one nation.4
Lent weight as it was by the views of such influential writers as A. V. Dicey ~ by
1891 federation was the only proposal being seriously put forward as a means of
the Australian colonies attaining some degree of unity .6
As a consequence of this, the specific problem facing the founding fathers was
not merely that of devising a sound constitution for Australia, but of framing a
sound federal constitution for Australia. In preparing this constitution they had, of
course, to give thought not only to finding solutions to problems which face the
draftsmen of constitutions generally, but also to the particular and· very complex
problems facing those who would draft a federal constitution. One such problem,
which would necessarily go to the heart of any proposed federal constitution, was
2
3
Browne J. W., 'The Australian Commonwealth Bill' (1900) 16 Law Quanerly Review 24.
Convention Debates. Adelaide, 1897, 296. Deakin was only one of many of the delegates to refer
with horror to the appalling loss of life suffered during the American Civil War.
4 A scheme for unification was unsuccessfully sponsored by SirGeorge Dibbs of New South Wales
in 1894: Quick J. and Garran R. R., The Annotated Constitution of the Australian Commonwealth
(1901), 1976 reprint) 155.
5 Dicey A. V., Introduction to the study ojthe Law ojthe Constitution (2nd ed. 1886) 127.
6. It would be fair to say that by 1897. unification was not a possibility, and that federation had the
field to itself.
An Indissoluble Federal Commonwealth?
283
the question of the pennissibility of the unilateral secession of any of the constituent states from the mooted federation.?
This problem arose both conceptually, and as a matter of recent history. As a
matter of theory, the very word 'federation' begged the question of indissolubility;
was a colony, once having shouldered the burden of union, to be allowed in any
circumstances to shrug it off, or was the federation to be pennanent, immutable
beyond the action of any individual colony? In providing for federation, the
founding fathers were inevitably faced with the question of secession, just as a
legislator in providing for marriage would be faced with the question of divorce.8
Prompted by history, however, the founding fathers had an even more compelling reason to exercise their minds over this question. Only thirty years before the
National Australasian Convention met in Melbourne in 1891, the great federation
of the United States of America had by the narrowest of margins avoided foundering upon this very constitutional rock. Only the bloodiest of civil wars had
prevented the secession of these discontented states. The United States was, to a
large extent,· both the model and the guide for the men who built the Australian
federation, and they were profoundly interested in, and impressed by, both its
constitutional history and its constitutional problems.9
This, then, was the issue facing the founding fathers; whether or not a state
should be permitted under the Constitution to leave the federation. The issue was
both political and legal. Before detailing and analysing the response of the
founding fathers to the issue, however, some brief examination should be made of
the sources which they drew upon in their attempts to deal with it,1Q and the way in
which these sources dealt with the question of secession, thus providing a context
for the actions of the drafters of our Constitution.
If any work was the 'Bible'll of the Convention, it was Bryce's The American
Commonwealth. 12 It was a large work of two volumes, and was treated with a
profound respect which at times approached obsequiousness by the delegates.\3 It
had, therefore, a profound influence upon the Convention.
Bryce was a critic, as well as an observer, of the American federation. He
balanced his admiration for it with a keen ability to locate its deficiencies. Some of
the more glaring of these deficiencies he collected in his book under the rubric of
'remarkable omissions in the Constitution of the American federation' .14 The first
that he lists is the failure of that Constitution both to grant the national government
the power to coerce a rebellious state, and to prohibit the secession of a state. IS
7 Most contemporary works on federations devoted some time to the question as a matter of course.
For example, see Garran R. R., The Coming Commonwealth (1897) 34.
8 An apt analogy used by Glynn P. McM., 'Secession' (1906) 3 Commonwealth Law Review 193.
9 For an excellent discussion of the influence of the American experience upon the founding
fathers, see Hunt E. M., American Precedents in Australian Federation (1930, 1968 reprint).
10 For a fuller discussion of the works used by the founding fathers, see La Nauze J. A., The Making
o/the Australian Constitution (1972) 273.
11 Ibid.
12 Bryce J., The American Commonwealth (2nd ed. 1890).
13 Convention Debates, Adelaide, 1897,288. Cf. La Nauze, op. ciJ. 273.
14 Bryce, op. cit. i, 314
15 Ibid.
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Bryce clearly regarded this failure as a fundamental error in the federal constitution, at least in the American context. Bryce went on to note the annihilation of
the American doctrine of secession at the sword?s point, but trans-Atlantic context
and successfully prosecuted civil war notwithstanding, the .comment and its
general implications must have given the delegates at least some food for thought.
More particularly, this dour warning that constitutions ought provide for future
contingencies in clear terms or suffer the consequences can have been neither new
to them, nor particularly comforting.
Nor could their minds have been set at rest by Bryce's later statement:
Everybody knows that it was the Federal system and the doctrine of State sovereignty grounded
thereon. . . which led to the secession of 1861.16
Linked with his previous comments, this statement underlined both the conceptual
and historical relevance of the issue of secession to the delegates' task in terms
which could scarcely have been clearer. 'Federations have problems with
secession', Bryce might be paraphrased. 'The Americans did not put the question
beyond doubt, and suffered grievously for it.' The message for the Australians
could hardly have been more clear.
For the framers of this new federal Constitution, no matter how hardened or
disinclined to accept American experience, Bryce's concluding words must have
been at least thought provoking:
The doctrine of the legal indestructability of the Union is now well established. To establish it,
however, cost thousands of millions of dollars and the lives of millions of men. 17
Clearly, here was an important question, perhaps an obvious one, but one to be
determined at the outset, indisputably, and for all time.
Bryce, while probably the most highly regarded source referred to by the
delegates in their search for precedent and enlightenment, was by no means the
only work so consulted,ls Of the others, some did not refer to the question of
secession. Many of the most thorough works, however, paid it at least passing
attention.
The Law ofthe Constitution by the eminent English constitutional lawyer ,A. V.
Dicey, was another work highly regarded by the delegates,l9 Dicey's book, unlike
that of Bryce, was not concerned exclusively with the constitutional law of a
federal system, and his comments were thus both less helpful and less detailed.
Dicey did, however, devote some attention to federations, and in doing so
posited the necessity for written federal constitutions to be closed to misapprehension. Descending into specifics, and casting about him for an example, Dicey
lighted upon what he referred to as 'the great question unsettled' in the American
Constitution, 'the gap which gave the opening' for the War of Secession.20 Dicey,
16 Ibid. 336.
17 Ibid. 337.
18 Bruce was, however, undoubtedly the author who exerted the most influence over the delegates.
19 La Nauze, op. cit. 20, 134.
20 Dicey, op. cit. 142.
An Indissoluble Federal Commonwealth?
285
therefore, was sufficiently impressed with the American experience to cite the
question of secession as his example of an issue, indeed the issue, which should
not be left open to question in a federal consitution, and in this sense, his view
would seem to be at one with that of Bryce.
Not all the works consulted by the delegates were overseas publications of only
general relevance to the task of framing an Australian constitution. The Coming
Commonwealth, by R. R. Garran, published in 1897, was a small but informative
book much read by delegates to the Adelaide (and subsequent) sittings of the
Convention.21 It was written by an Australian, and specifically addressed to the
Australian pUblic. This book was written less as a learned treatise on constitutional
law than as a useful summary of 'what every Australian ought to know in order to
understand Australian Federation' P Indeed, written as it was by a rabid federationist, the book was as much a determined attempt to promote Australian
federation, as it was to explain it.
Whatever his aims, Garran felt compelled to touch upon the question of
secession at some considerable length in his book. As an avowed believer in the
advantages of federation. he was concerned to remove the spectre of secession
from Australian federation from the outset, and thus to guarantee its permanence.
At the same time, he was at pains not to panic his readers in the different colonies
by presenting federation as a tight prison, rather than a safe harbour, for the
Australian colonies.
Garran laid his groundwork by drawing a fundamental distinction between
'federations' and 'confederacies'. The essential distinction, wrote Garran, was
that whereas a right of secession might be conceded in a confederacy, such a right
was inconsistent with the very nature of a federation.23 It followed from this
statement, the correctness of which is at the very least disputable,24 that as the
Australian colonies were proposing to unite in a federation rather than a
confederacy, secession by one of the colonies after federation was necessarily
impossible. In these terms, Garran put forward his argument of the conceptual
impossibility of secession from a federation.
Garran was, however, concerned with practicalities as well as jurisprudence.
He went on to frankly acknowledge that regardless of the legalities, secession
would always be a particular problem facing federations; firstly, because a
seceding state would already possess the necessary governmental machinery to
allow it to immediately assert its newly claimed independence; and secondly,
because a federal government would be less likely to offer effective resistance to a
secession than the government of a unitary state.25 Having recognised the problem,
Garran did his best to dismiss it. A federal union, he wrote, 'must in its terms be
La Nauze, op. cit. 273.
Garran R. R., The Coming Commonwealth (1897) preface.
Ibid. 26.
24 Wheare K. C., Federal Government (4th ed. 1963) 86-7. Nor does Dicey include a prohibition
of secession as one of the fundamental characteristics of a federation: Dicey, op. cit. 132.
25 Garran, op. cit. 34.
21
22
23
Melbourne University Law Review [Vol. 14, December '83]
286
indissoluble, else it carries within it the seeds of its own destruction' .26 He drew on
the American precedent, declaring that the indissolubility of that Union had been
asserted 'at the swords point',27 and seemed implicitly to wam any would-be
Australian emulators of the Confederate States of America that they might meet
with a similarly grisly fate.28
As something of a propagandist for federation, however, Garran seems to have
realised that so forceful a line of argument might not have commended itself to any
one who was open minded on the question of federation, but was wary of being
committed to it for an unknown eternity. Consequently, he made two concessions.
Firstly, he held out the prospect that a State might be allowed to leave the
federation by an amendment of the Constitution in the prescribed form.29 Secondly, he stated that unity, to be of value, must be voluntary. If a State really
wished to leave the proposed Australian federation, it could do so by revolutionary
means, which course 'would probably meet with little resistance';30 a strangely
unconvincing argument in view of his use of the American Civil War as an
example in point.
From Garran' s treatment of secession, we can draw a number of inferences. He
certainly saw it as an issue facing the proposed new federation. He saw it as both a
conceptual, and a practical issue. Given that he was writing a book explaining
federation to the people generally, he also plainly felt it necessary or advisable to
hold out some prospect of peaceful secession, though naturally with no
enthusiasm. From Garran's work, the delegates would have been aware that
secession was, then, an issue; but Garran's view that it was inherently and
obviously unlawful may have prompted them to feel that it was not really necessary to consider a negativing provision when drafting their constitution.
It is not claimed that the three works discussed represented the sum of the
delegate's reading on the question offederation. Numerous other works were read,
and some of these made no mention of the question of secession.3 ) What is
submitted is that these works were the basic texts read by the delegates, and thus
highly influential. A number of consequences follow from acceptance of this
proposition.
Firstly, the framers of the Australian Constitution must have been aware that
secession was one of those particular problems which faced federations, and one
which would at least have to be squarely considered by men framing a federal
constitution. Such an awareness would have been gleaned particularly from Bryce
and Garran. Secondly, as previously stated, they would inevitably have known
that the horrible losses of the American Civil War, losses of which they were
Ibid.
Ibid. 35.
28 Ibid.
29 Ibid.
30 Ibid.
3) For example, Sir Baker R. C., A Manual of Reference to Authoritiesfor the use of the Members of
the Sydney Constitutionrl Convention which will assemble on March 2, /89/. For the Purpose of
Drafting Constitution for the Dominion of Australia (1891). Baker never refers to the question of
secession.
26
27
a
An Indissoluble Federal Commonwealth?
287
profoundly aware, were at least partly consequent upon the failure of those who
wrote the American Constitution to deal adequately with the topic of secession.
Bryce, Dicey and Garran would all support such a view. Finally, in view of the
above, it is clear that secession must, or at least should have emerged as an issue of
some weight in the minds of the delegates. In practical terms, it was their function
to ensure that this problem was not grafted onto the Australian federation, alongside other more acceptable innovations from the United States. In short, the
founding fathers were faced with a quite clearly posited issue, and the task of
satisfactorily dealing with that issue.
3 The Resolution of the Issue; the Convention, Debates and their Outcome
To speak of the Convention Debates as they relate to the question of secession is
to speak of the speeches given at the Adelaide sitting of 1897. Although that sitting
was neither the starting point for Australian federation, nor the first sitting of the
Convention, it was both the beginning and the end of the discussion of secession as
an issue by delegates of the Australian colonies. The issue was not raised before
Adelaide, and was not raised in the Convention thereafter.
It is not surprising that the issue did not surface at the meeting of the Convention
in Sydney in 1891. A body whose primary concern was to ensure that federation
was at least effectively conceived, if not actually delivered, would be naturally
disinclined to canvas its demise. Neither in the opening resolutions of Sir Henry
Parkes,32 nor anywhere in the Commonwealth of Australia Bi1l 33 as it eventually
emerged, nor indeed in any of the connected debates, is any reference made to the
question of the right of secession, or to the indissolubility or otherwise of the
Commonwealth.
A new Convention met at Adelaide in 1897, where it assembled to debate
resolutions framed by Edmund Barton,34 and to draft a new Constitution Bilp5 It
was during this sitting of the Convention that the issue of secession was discussed
for the first and last time by the founding fathers.
The debate on the question of secession took place during discussion of Barton 's
general resolutions, partly because this was the logical place to discuss something
so fundamental as the enduring nature of the federation, and partly because Barton
had placed no statement asserting this enduring nature in the resolutions
themselves, which was a significant omission.36
Barton himself was the first to advert, if indirectly, to the question of the
secession of a state. Speaking on the role of the Federal Supreme Court, Barton
stated that the strongest guarantee of an 'indestructible Union', was the existence
of a just tribunal to which the States could bring their disputes, rather than 'flying
32 Convention Debates. Sydney, 1891,23.
33 Ibid. 943-64.
34
Convention Debates, Adelaide, 1897, 17.
35 The Convention decided to draft a new Constitution rather than to work from the 1891 Draft.
Convention Debates, Adelaide, 1897, 11.
36 Although this omission was commented upon by other delegates, Barton never made any attempt
to defend, or to explain it.
Melbourne University Law Review [Vol. 14, December '83]
288
to secession' .37 With the American Civil War clearly in mind, Barton said that he
hoped that disputes would be settled by law, not war.38 Barton made nocomment
as to the legality or conceptual validity of a unilateral secession, nor did te'suggest
the inclusion of any provision to put such an issue beyond doubt. Whatever his
views on such matters, he apparently saw secession as a practical problem, and
strove for a practical solution which would remove the danger of secession, rather
than for a provision which would simply forbid it.
Sir George Turner, the Premier of Victoria, was the next to mention secession.
He made the bold statement that no right of secession should be provided for in the
Constitution,39 and was clearly of the view that the issue could be settled in the
negative by a legislative silence on the matter. Joseph Carruthers of New South
Wales adopted a somewhat more considered position. He noted and deplored the
absence of a reference to the indissolubility of the Commonwealth in the general
resolutions.40 He went so far as to call upon his fellow delegates to express their
feelings as to the admissibility of a right of secession, and was met with cries of
'No!' .41 Apparently satisfied with this response, he urged the Convention to draft a
Constitution which would not provoke secessionist forces, and would be
sufficiently elastic to allow any necessary amendments.42 Other than his reference
to the desirability of the inclusion of a statement of indissolubility in the
resolutions, he made no suggestion as to how the apparent feeling of the
Convention against secession might be implemented.
The most interesting and lengthy treatment of the issue came from Josiah
Symon, Attorney-General for South Australia. Like Carruthers, he deplored the
failure of the resolutions to assert the indissolubility of the Commonwealth.43 But
in contrast to Carruther's vague dislike of the idea of secession, Symon went on to
make what amounted to an eloquent plea that the inadmissibility of secession be
put beyond all doubt in the new constitution:
We are all agreed ... that we intend this Union to be pennanent and indissoluble. But I do think that
holding that view, as the Convention does, it would be well that it should be clearly and definitely
expressed-at every point wherever it is possible. 44
Symon argued that one of the main causes of the American Civil War was that
the right of secession was not expressly negatived in the United States
Constitution,45 and told the Convention:
We should make. I think ... a considerable mistake if we do not make it absolutely clear-and we
cannot begin too soon, it seems to me - that this Union is to be pennanent, and that there is to be no
secession. 46
37 Convention Debates.
38 Ibid.
39 Ibid. 48.
40
Ibid. 93-4.
41 Ibid. 93.
42 Ibid. 94.
43
44
45
46
Ibid. 128.
Ibid.
Ibid.
Ibid.
Adelaide, 1897,25.
An Indissoluble Federal Commonwealth?
289
Symon's words convey a recognition that secession was, to him, a very serious
problem, and a conviction that this problem had to be dealt with determinedly and
finally by the Convention.47
William Lyne of New South Wales stated simply that there should be no right of
secession. Otherwise, problems similar to those which arose in America might
arise in Australia.48 He made no suggestion as to what course the Convention
might adopt to avoid these problems.
His fellow New South Welshman, William McMillan, said that with regard to
the indissolubility of the Commonwealth, he trusted 'that that which was left out of
the preamble of the American Constitution will be included in ours' ,49 and it was
this brief suggestion which ultimately found expression in the preamble to the
Commonwealth of Australian Constitution Act.
The brilliant Victorian lawyer, Isaac Isaacs, did not mention secession in his
own speech, but somewhat characteristically, interrupted both Carruthers 50 and
Symon,51 to say that no provision prohibiting secession was necessary, on the
grounds that the Constitution would be contained in an Imperial Act. Symon dealt
with Isaacs' interjection with some asperity, and as a matter of convenience it may
be noted at this stage that Isaacs' comment was not necessarily as well founded as
he might have thought. While it is undoubtedly true that an act of a State
Parliament which conflicted with the proposed Constitution, which would be
contained in an Imperial Act, would be invalid, the question would always be
whether there was in fact a conflict. Thus, the issue would be not the status of the
Imperial Act, but whether or not that Act explicitly or impliedly granted a right of
secession. All that Symon wished to ensure was that no such grant was made by
default.
Other speakers referred more indirectly to the question of secession. Bemard
Wise hoped that the assertion that it was 'the Australian people' rather than 'the
Australian Colonies' who were the subject of the Constitution,52 would render
irrelevant arguments as to the seat of sovereignty in the Australian federation, and
thus avoid the American experience.53 Alfred Deakin, while arguing against 'State
rights' , referred to secession as 'the absolute State right' , and noted that the United
States had been forced to rewrite its Constitution 'in the blood of a million
Americans' ,54 but did not pursue the matter further.
It is notable that no delegate advocated a right of secession, though a number of
delegates delivered speeches in which the powers of the States so far exceeded
those of the Commonwealth that they could fairly be described as 'confederal'
47 Symon also demanded an indissoluble union in a supplementary pamphlet to the Observer
(Adelaide), 16 February 1897: Hunt, op. cit. 83.
48 Convention Debates. Adelaide, 1897, 161.
49 Convention Debates. Adelaide, 1897,217.
50 Ibid. 93.
51 Ibid. 128
52 Barton's resolutions began with the phrase. 'That, in order to enlarge the powers of selfgovernment of the people of Australia ... ' Convention Debates. Adelaide, 1897, 17.
53 Ibid. 115.
54 Ibid. 296.
290
Melbourne University Law Review [Vol. 14, December '83]
rather than federal in tone,55 and these delegates were roundly scorned by some of
their fellows for doing SO.56
This, then, was the position at the conclusion of the debates of the Convention as
a whole on Barton's general resolutions. The Convention then resolved itself into
three committees,57 of which the Finance and judiciary Committees need not
concern us.
It was the third committee, the Constitutional Committee, which was given the
task of arriving at a basis for a constitution, which could then be entrusted to a
Drafting Committee for translation into a draft bill. It was presumably this
Constitutional Committee whose task it was to express the feeling of the
Convention against secession. However, when the Constitutional Committee had
finished its secret deliberations, and resigned the fonnal remainder of its task to the
Drafting Committee, there had emerged no provision relating to secession.58 It was
finally left to the inconspicuous Drafting Committee to insert one word into the
preamble of the Draft Bill, the word 'indissoluble' before the word 'Commonwealth' .59 It was this word which represented the response of the Convention to the
question of secession as it was presented to them. The word was agreed to by the
Convention without comment, save by Deakin who went so far as to praise it as a
'decided improvement' upon the resolutions.60 Its significance was not to be
commented upon again in the Convention, either in Sydney, or in Melbourne, or
indeed, in the Imperial Parliament in London.61
There was, however, a sequel to this unceremonious and rather clandestine
entry into the Draft Bill. Although the Parliaments of Victoria, Tasmania, Western
Australia and South Australia largely confined themselves to constructive
criticism of the Bill,62 the Parliament of New South Wales was not so reticent. The
conservative Legislative Council, in particular, felt free to remove whatever it saw
as objectionable from the Bill. Near the end of a stonny debate, after Barton had
Ibid. 155.
Ibid. 352.
57 Ibid. 395.
58 The Advertiser (Adelaide), 9 April 1897, reported the progress of the Constitutional Committee.
There was no provision relating to secession in the body of the Act, nor was there a reference to the
indissolubility of the Commonwealth in the Preamble when it was agreed upon on 8 April 1897. The
Argus (Melbourne), 9 April 1897, confirms this absence.
59 The Constitutional Committee completed its task on 8 April 1897, and passed its requirements to
the Drafting Committee consisting of Barton, Downer, and O'Connor. As stated, there was at this
stage, no provision relating to secession. On 12 April 1897, the Draft Bill was laid before the
Convention and the Preamble included the phrase 'indissoluble Commonwealth'. It follows that the
word, indissoluble, was inserted by the Drafting Committee. The Advertiser (Adelaide), I3 April
1897, ~oted the inclusion with approbation, stating that it was now clear that there was to be no right to
seceSSIOn, and that the troubles of the United States would now be avoided. It also stated, however, in
phrases suspiciously similar to those used by Garran in his The Coming commonwealth, that nothing
could 'take away from the sacred right of insurrection' .
60 Convention Debates, Adelaide, 1897, 1184.
61 The Preamble was agreed to without discussion of this point both at Adelaide (Convention
Deb(l1es, Adelaide, 1897, 1189), and Melbourne (Convention Debates, Melbourne, 1898, 1741). The
Preamble was not discussed at the Sydney sitting of the Convention.
62 The: Debates may be found as follows: New South Wales, Parliamentary Debates, 1st series,
vols. 87-90; South Australia, Parliamentary Debates, 1897; Victoria, Parliamentary Debates, 1897,
vols. 85-6; Western Australia, Parliamentary Debates, 1897, new series, vol. 10. The only
-particularly interesting discussion for present purposes occured in the Parliament of New South Wales.
55
56
An Indissoluble Federal Commonwealth?
291
already left the Chamber in fury, the Council with great relish struck the word
'indissoluble' from the preamble by 18 votes to 10, and the mover of the motion
was barely restrained from moving the insertion of a provision giving the States an
express right to secede.63 But this was a mere flurry. When the Convention met in
Melbourne, in 1898, the preamble, including the word 'indissoluble' was agreed
to without discussion of the Council's destructive action, which was conveniently
ignored.64 It was this form of the preamble which was to precede the
Commonwealth of Australia Constitution Act when it was enacted by the Imperial
Parliament in 1900.
4 Analysis of the Debates and their Outcome
Perhaps the single most striking feature of the Convention Debates as they relate
to secession is the very lack of detailed discussion of the issue. The question was
raised only at Adelaide, at one out of four of the sittings of the Convention. This
fact might not have been so obvious if the discussion at Adelaide had been
fullsome, but this was simply not the case. Of the sixty delegates, only eight made
direct references to secession.65 Ofthese eight, four were New South Welshmen,
three were Victorians, and one was a South Australian. Thus, perhaps ironically,
no Tasmanian or Western Australian even addressed himself to the issue.66
Queensland was not represented at the Convention. Nor was di~cussion impressive
in terms of volume. If all the discussion at Adelaide relating to the question of
secession were to be compiled, it would barely exceed one page out of over twelve
hundred needed to record all that was said.
Again, this apparent lack of interest might be explicable if the point had been
minor or obsure, but as was pointed out in the first section of this article, and as is
suggested by the words of delegates such as Symon and Carruthers, the questions
of secession and indissolubility were at least issues of the middle rank, and works
which dealt with them were both available to, and read by, the founding fathers.67
They had before them the awful example of the United States, and their speeches
show that this weighed upon their minds; but on the very question that nearly
wrecked the American Union, they were all but silent, and their response to that
question consisted merely of inserting one word in the Preamble.
63 New South Wales, Parliamentary Debates, Legislative Council, 26 August 1897,3478. The
motion was moved by L. F. Heydon, as part of a general campaign of what can only be described as
wanton destruction. Heydon had previously proposed an amendment to clause 61 (6), to withdraw the
power of the Commonwealth to call out the forces, on the grounds that such forces might be used
against the States. He was persuaded by Barton to withdraw the motion. New South Wales,
Parliamentary Debates. Legislative Council, 24 August 1897,3288.
64 Convention Debates, Melbourne, 1898, ii, 1741. Interestingly, the Preamble was simply agreed
to without the specific issue involved ever having been raised.
65 They were: Edmund Barton (N.S.W.), Sir George Turner (Vic.), Joseph Carruthers (N.S.W.),
Josiah Symon (S.A.), WilliamMcMillan (N.S.W.), William Lyne (N.S.W.), Isaac Isaacs (Vie.), and
Alfred Deakin (Vic.).
66 This fact of itself was of little significance, however, as only one Tasmanian spoke following an
agreement among their delegates, (Convention Debates, Adelaide, 1897,308), while the Western
Australians adopted the same approach (Convention Debates, Adelaide, 1897,204).
67 Even delegates known not to be widely read, such as Lyne, had apparently read Bryce: La Nauze,
op ..cit.273.
292
Melbourne University Law Review [Vol. 14, December '83]
Beyond noting the general point, this analayis of the Convention Debates and
their outcome will have two objects. Firstly, it will classify the views of secession
expressed at the Convention into their main schools of thought in order to gain
some overview of the Convention's thinking on the subject. Secondly, it will
ascertain what may be learned of the attitudes of the delegates, not from their
speeches, but from their solution - not from what they said, but from what they
did.
The first, and apparantly the school with the most adherents, was that which
held that some unspecified acknowledgement of the indissolubility of the Union
and the inadmissibility of secessions should be made somewhere in the
Constitution Act. Lyne, McMillan, Carruthers and Deakin appear in varying
degrees to have been united on this point. To none of them was the issue one of
profound practical importance; rather, it would appear to have been as much a
matter of rhetoric as anything else to assert the indissolubility of the proposed
federation. Carruthers, who was sufficiently enthusiastic to call upon members to
voice their rejection of secession,68 and who repeated his comments in the
Legislative Assembly of New South Wales,69 was not moved to make practical
suggestions as to how to implement the mooted prohibition of secession. Nor did
Lyne,1° or Deakin.1 1 McMillan proposed a provision against secession in the
Preamble, but did not suggest a provision directly prohibiting secession in the
body of the Constitution.72 To this group of delegates, secession was apparently a
problem sufficiently inconvenient or remote (or both), that it could best be dealt
with overall by some vaguely negative provision, probably to be placed outside the
body of the Constitution Act. In view of the general indifference of the bulk of the
other delegates, there is no reason to suppose that these delegates were exceptional
in their views.
The second school of thought was that which held that there was no need to
make any reference at all in the Constitution Act to the question of secession. This
view was held decidedly by Isaacs,73 and was probably also the view ofTurner,14
As previously mentioned, Isaacs twice interjected to say that as the proposed
Constitution would be contained in an Act of the Imperial Parliament, secession of
one of the States would be so clearly impermissible that there was no need to
expressly provide against it. It has also been submitted that Isaacs' view was not
self-evidently correct, for if an Imperial Act were by silence on the point, to
arguably confer an implied right upon a State to secede - and that was the relevant
issue - then Isaacs' argument would avail the Commonwealth not at all, but
rather confound it. Turner's exact view is unclear, but he appears to have thought
that secession would only be possible if expressly provided for, and it would seem
68
Convention Debates. Adelaide, 1897,93.
69 New South Wales, Parliamentary Debates. Legislative Assembly, 12 May 1897,420.
70
71
72
73
74
Convention Debates, Adelaide, 1897, 161.
Ibid. 296.
Ibid. 217.
Ibid. 128.
Ibid. 48.
An Indissoluble Federal Commonwealth?
293
to follow from this that he believed that the possibility of secession could be
effectively precluded by silence.
Barton occupied a third position, and apparently occupied it by himself. As
stated, Barton regarded secession as a practical problem rather than a legal one,
preferring to prevent rather than to prohibit iU 5 Barton' s device to achieve this end
was a Federal Supreme Court which would impartially weigh the competing
claims of state against state, and presumably of state against Commonwealth. The
effectiveness of the High Court as a protector of the States is, perhaps, more open
to question today than it was in Barton's mind.
Finally, Josiah Symon occupied his rather lonely pinnacle on this question.
Symon certainly did not wish the Constitution to pass over the issue in silence, and
the mere inclusion of the word 'indissoluble' in the preamble would hardly have
been consistent with the spirit of his speech. Symon had urged that the rejection of
any right of secession be expressed 'at every point and wherever it is possible' ,76
and the logical conclusion to be drawn for this and his other statements on the topic
is that he would have welcomed an express provision in the body of the
Constitution prohibiting secession. Symon's view seems to have been couched in
classic American terms: a constitution which was silent or ambiguous on the
question of secession was a constitution which carried within it a latent danger.
That danger should be expressly excised from the outset, clearly, and beyond
dispute. Symon's was the strongest statement against secession, and on its own
terns, it was not implemented by the Convention.
It should, of course, be noted that the only form of secession exercising the
minds of the delegates was that of a State unilaterally seceding from the
Commonwealth. They would have conceded that a secession could, in principle,
have been effected by the superior power of the Imperial Parliament,77 and some
would have argued that secession would be possible through the amending power
contained in the Constitution itself.78 Neither of these possibilities, however,
conjured up the visions of civil strife and dissensiori.lnherent in the notion of a
unilateral secession.
We may now turn from this consideration of the opinions of the delegates to an
assessment of the method chosen by them to express these views as part of the
Constitution which they devised. What is undertaken here is not a discussion of the
legal effect of the inclusion of the word 'indissoluble' in the Preamble, but rather
an examination of what the adoption of this course of action reveals about the
attitudes of the delegates to the question of secession.
The simple method of exploring the significance of the course of action chosen
by the delegates is to consider the various options open to them, and thus to attempt
to arrive at a conclusion as to why one, which might be called 'the preamble
option', was preferred to the others which presented themselves.
Ibid. 25.
Ibid. 128.
77 Certainly the logical implications of Isaacs' argument lead to this conclusion, and see Glynn, op.
cif. 203.
78 Glynn, op. cif. 203.
75
76
294
Melbourne University Law Review [Vol. 14, December '83]
As has been shown, the delegates were confronted by a recognized and well
documented problem which effectively faced all those who would frame a federal
constitution. At hand, they had a variety of solutions, ranging from an absolute
recognition of the right of secession on the one hand, to its absolute denial on the
other. Given the general if vague feeling of the Convention against secession,
which would necessarily preclude its recognition as a right, there were still at least
four options open to the Convention in dealing with the issue. They were:
I For the Constitution to say nothing, relying on the correctness of the view of
Isaacs.
2 For the Constitution to recognize the indissolubility of the Commonwealth
outside its substantive provisions, namely, in the Preamble.
3 For the Constitution to make this recognition in the Preamble, and to also
expressly prohibit secession in one of its substantive provisions.
4 For the Constitution to make the recognition in the Preamble, prohibit
secession, and arguably to put the matter beyond any doubt whatsoever by
conferring upon the Commonweatlh the express power to coerce a rebellious
state.
It is a matter of history that the Convention chose the second option, but this
very act of choice tends to obscure the fact not only that other possibilities existed,
but also the implications of the choice. For, regardless of the reasons for its
adoption, one feature of this choice stands out: from four available courses of
action the Convention chose the weakest stance against secession bar one.
On any analysis, the inclusion of a word in the Preamble aimed against
secession was a less powerful approach than the pursuit of this option in
conjunction with one of the other measures outlined. But it can also be very
strongly argued that because the Preamble is only a group of words outside the
body of the Act, and thus can only be referred to by a court in very exceptional
circumstances,19 that any alternative approach which involved making a statement
against secession in the actual body of the Constitution Act would have been a far
stronger measure.
The view that the Preamble is of itself an effective guard against secession has
not been without eminent supporters,so but it can hardly be denied that had the
Convention wished to do so, it could have expressed its rejection of secession in far
more explicit and unequivocal terms. A question of some interest thus arises: why,
given that the Convention had apparently decided against secession, and was
aware of the consequences of the ambiguity of the American Constitution on the
point, did it choose to express its decision merely by the insertion of one word into
the Preamble, rather than by ·specifically and methodically annihilating the
question of secession by explicit provisions in the body of the Constitution? While
79 Overseas of West Ham v.lles (1883) App. Cas. 386,388. It was held by Lord Blackburn that if
the meaning of the words of an Act is clear, the Preamble will not be taken into account. The relevance
of the Preamble is as a tool to discern the intention of the Parliament in the case of ambiguity. Thus,
while of some importance, the Preamble is clearly subordinate to the express words of the Act.
80 E.g. Quick and Oarran op. cif. 286. The authors of this work saw the Preamble as containing
guiding principles for the new Commonwealth.
An Indissoluble Federal Commonwealth?
295
any answer to this question must to some extent be based upon conjecture, an
attempt to answer it is vital to an understanding of the response of the Convention
to the issue of secession.
Themost obvious answer would be that at least some of the delegates felt that
their addition to the Preamble did indeed effectively guard against the possibility
of secession, and it is not difficult to find a certain amount of evidence to support
this view. As noted above, McMillan of New South Wales specifically suggested
that the proposed prohibitiort of secession be placed in the Preamble, and in doing
so referred to the American example.HI On the face of his speech, it seems clear
that he believed such a prohibition would be effective. While campaigning against
acceptance of the Constitution Bill, Henry Bournes Higgins was at pains to stress
the inability of the colonies to extricate themselves from the proposed union once
they were included inside it, and cited the Preamble as support for his view.H2 But
such a statement may have been as much a matter of propaganda against
acceptance of the Bill as the reflection of any real belief in the efficacy of the
Preamble. Perhaps more significant was the comment of Bryce, who, when he
came to consider the newly enacted Australian Constitution in 190 I, briefly
remarked that the Preamble 'enounced ... that indissolubility of their union
which the Americans did not enounce in 1788' .H3 Bryce thus made no direct
comment upon the efficacy of the Preamble, but certainly betrays no sense of
dissatisfaction, which was perhaps a little puzzling in view of the strength of his
comments on the American Constitution.84
But there is also strong evidence that not everyone who read the Preamble,
delegate or not, was so convinced of its effectiveness. Outside the Convention,
there was considerable confusion as to the effect of the inclusion of the word
'indissoluble' in the Preamble. In urging its readers to vote for the Commonwealth
Bill, the Sydney Bulletin suggested that the provision for the indissolubility of the
proposed Commonwealth was not a problem, as Section 128 could be used to
strike the word 'indissoluble' from the Preamble,85 an ill-considered view which
drove Higgins to despair.86 In 1898, the Governor of Victoria rather surprisingly
adopted a similar line of reasoning in his speech from the throne.H7
Perhaps the most instructive insight as to the views of the actual delegates to the
Convention comes from Patrick McMahon Glynn, himself a delegate. In 1906,
Glynn wrote a since much neglected article on secession, in which he stated:
The indissolubility of the Commonwealth of Australia is proclaimed in the preamble of the
Constitution. The Union of course, is none the less dissoluble on that account. HH
Convention Debates, Adelaide, 1897, 217.
Higgins H. B., The Australian Commonwealth Bill. Essays and Addresses (1900).
Bruce J., 6-8. Studies in History and Jurisprudence( 190 I) i, 532.
Bryce J., The American Commonwealth (2nd ed. 1890) 336.
Bulletin (Sydney), 2 January 1897, refen'ed to in Hunt op. cit. 78.
H6 Higgins, op. cit. 71.
87 Ibid. 125.
88 Glynn, op. cit. 203.
HI
82
83
84
85
296
Melbourne University Law Review [Vol. 14, December '83]
Glynn, presumably one of the delegates who cheered Carruthers' suggestion
that there should be no secession, saw the words of the Preamble as little more than
pious sentiment.
The declaration, therefore, that the Australian Commonwealth is indissoluble, may be regarded as
one of those preliminary flourishes addressed to the conscience, which are to be found in the
preambles of instruments which suggest more that they accomplish. 89
Glynn, the lawyer-delegate, was thus quite certain that the inclusion of the word
•indissoluble' in the Preamble was at best of negligible effect.
Glynn's view highlights one aspect of the action taken by the Convention in
placing the prohibition of secession in the Preamble, rather than in the body of the
Constitution Act. Glynn was one of many lawyers who were delegates to the
Convention, which was able to draw upon a vast pool of legal expertise.90 All of
these men would have been well aware of the status of a preamble to a statute as
being largely a 'preliminary flourish' , only to be used as an aid to the interpretation
of the statute in certain very limited circumstances?' They would all have been
aware, as Glynn was aware, that there was a possibility which amounted virtually
to a probability that the Preamble would be dismissed as mere high sounding
language in the hopefully unlikely event that it became necessary for a court to
interpret the Constitution on the question of secession.92 It would, therefore, have
been a most dangerous place in which to express any serious principle or provision
of the Constitution. Furthermore, even if there was some possibility that the
Preamble would prove an effective bar to a unilateral secession, the fact that this
would be a possibility only would leave the Constitution open to that very charge
of uncertainty which plagued the Americans. As we have seen, some degree of
confusion already existed in the eyes of the public, even before the Bill was
approved.
In the light of the discussion above, it is clear that the proposition that the bulk of
delegates actually saw the Preamble as an effective means of prohibiting secession
is, at the very least, hightly doubtful.
An altemative(and far more convincing) explanation of the course of action
taken by the Convention, is that it chose merely to express its hopes for the future
in the Preamble, rather than to attempt any actual prohibition of secession. Such an
argument would be strongly based upon the fact that to many of the delegates, the
negation of a right of secession was quite unnecessary, though an assertion of the
immortality of the Commonwealth might have been seen as both seemly and
proper.
To such delegates, the question of secession was rendered irrelevant by virtue of
the Constitution being contained in an Imperial Act, a view already discussed. The
best examples of such delegates are Isaacs and Glynn. Isaacs was profoundly
89
Ibid. 204.
Appendix 8 in La Nauze, 328, which includes the occupations of the founding fathers. Men such
as Symon, Abbot, Barton, Quick and Downer were acknowledged experts.
91 See the discussion relating to preambles, in Quick and Oarran, op. cit. 286.
92 Glynn, op. cit. 202, and it is possible that Symon's demands for 'clear expression' may have
suggested a disinclination to merly place a prohibition in the Preamble.
90
An Indissoluble Federal Commonwealth?
297
unimpressed by the spectre of secession, but offered no opposition to the Preamble
as it ultimately emerged. Likewise Glynn, who waxed almost jocular when
discussing the Preamble's lack of substantive effect?3 yet agreed to it without
demur.94
Other delegates may have agreed with Garran that the intrinsic nature of a
federation excluded the possibility of secession beyond any question.95 Still
others, like Barton,96 would have seen the question as practical, rather than
constitutional. To all these delegates, a substantive provision prohibiting
secession would have been an absurdity, a tilting at non-existent windmills. But a
dignified statement of the permanence of a great new nation would have been quite
another thing, and the place for such a statement would have been in the Preamble,
since the legal effect of such a statement would not be of importance.
Indeed, there was perhaps a link between those delegates who saw the Preamble
as an effective prohibition of secession, and those to whom it was a mere !'luurish.
To those who could conceive of no real difficulty, a substantive provision was
inadmissible - but a reference to the indissolubility of the Commonwealth in the
Preamble would have been acceptable as contributing to a dignified opening. To
those who required a rrohibition, the Preamble could be construed as giving them
one. Thus the Preamble may have provided a middle ground, being all things to all
men.
There is yet another possible explanation for the adoption of the 'Preamble
option', though it arises more from an examination of the circumstances
surrounding the federal movement than from any direct evidence from inside the
Convention. While the Convention was formulating its draft constitution, it still
had before it the exceedingly daunting task of convincing the people of the
Australian Colonies to federate atall. It is well-known that the watch-word of the
Convention was 'compromise', and the reason for this atmosphere of conciliation
was the necessity of arriving at a package which would be acceptable to the people
of all the Colonies. Given a populatiollwhich was perhaps benignly interested in,
but certainly not irrevocably committed to any scheme of federation which might
be arrived at by the Convention, the last feature of such a scheme which would
have recommended itself to anyone unsure of their position would have been a
Glynn, op. cit. 203.
Glynn proposed the recognition of God in the Preamble but made no comment as to the word
'Indissoluble'. Convention Debates, Adelaide, 1897, 1184.
95 Garron, op. cit. 26. Interestingly, Quick and Garron, op. cit., this argument is not raised at all,
and the argument against secession (to the extent that it is raised specifically), is rested basically on the
preamble: 293. It may also be as well to note at this stage the leading role played by Sir Robert Garran
regarding the question of secession. Garran was virtually the first Australian writer to mention the
possibility in his book, The Coming Commonwealth, where he determinedly raised the argument that it
was impossible. He served as secretary to the Drafting Committee which inserted the word
'indissoluble' in the preamble. He appears to have inspired the complimentary references to that
insertio in the Adelaide press, and was the only leading federalist present when the Legislative Council
of New South Wales moved its deletion (New South Wales, Parliamentary Debates, Legislative
Council, August 1897,2808. In 1934, suitably Garran was joint author of The Case for Union, a reply
to Western Australia (Joint Committee of Parliament), The Case for Secession (1934). Whatever the
reason, Garran seems to have gone to some trouble to rule out secession from the Australian federation.
96 Convention Debates, Adelaide, 1897,25.
93
94
298
Melbourne University Law Review [Vo!. 14, December '83]
statement that once the union was formed it was for better or worse, and even iffor
worse, forever.
In this connection it must be noted that supporters of federation were quite often
at pains to suggest that there would be an escape valve, whether by means of
Garran's 'easy revolution',97 or the Bulletin's prospect of constitutional
amendment.98 Correspondingly, opponents of federation, including the Australian
Labor Party, were quick to attack the suggestion of indissolubility.99
Given this atmosphere, it may well have been the case that whatsoever the
personal preferences of the delegates themselves, it was judicious to confine
references to the permanence of the union to the Preamble, rather than to descend
into almost certainly divisive specifics in the body of the Act. After all, even the
comparatively innocuous Preamble had incurred the wrath of the Legislative
Council of New South Wales.
It is tempting to speculate as to whether any of the delegates to the Convention
might have desired a right of secession. To the extent that none of them said so, the
answer must be no. But the Convention did not lack such statements as those of
Holder of South Australia, who said:
I do not want that the States should be dependent for their existence upon the Commonwealth. If
there must be any dependency there would be less danger in making the Federation dependent upon
the States . . . I
Holder was criticized for making so 'confederationist' a statement.2 The
implications of Holder's remark are intriguing for the purposes of this discussion,
although he was, perhaps, speaking loosely at the time. The most that can be said
in this connection, is that a delegate inclined to favour secession, or at least
disinclined to prohibit it, might well have preferred to accept a word in the
Preamble, rather than to oppose it and, so risk the inclusion of a more explicit and
inconvenient statement in the body of the Constitution Act.
It is, of course, impossible to be sure of the dominant f~ctors which influenced
the delegates in reaching their decision. Presumably, their course was dictated by a
number of factors. What does emerge quite clearly, however, is that the
Convention, (for whatever reasons), adopted a 'soft~option' on secession.
5 Conclusion
Historically, therefore, the delegates of the Convention were faced with a clear
issue - they were compelled to adequately consider the question of secession, if
only to make clear their utter rejection o(the concept. Yet their discussion of the
issue was almost nugatory, and their undistinguished response to it was certainly
not one of their more significant achievements.
97
98
99
I
2
Garran, op. cit. 36.
Bulletin (Sydney), 2 January 1897, referred to in Hunt, op. cit. 78.
Clark C. M. H. Select Documents in Australian History 1851-1900 (1955) 495.
Convention Debates, Adelaide, 1897, 155.
Ibid. 352
An Indissoluble Federal Commonwealth?
299
Further, for all its flourish, the history and origin of the Preamble casts grave
doubts upon any claims it may have to be the Constitution's guardian against
secession. For whatever reasons, secession emerged from the Convention as the
same vague and ill-defined issue which continues to periodically provide the basis
for half-meant and less well-perceived threats to the permanence of the Australian
Federation.